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ISLAMABAD: The Islamabad High Court (IHC) has held that no political party or group of persons can claim a right to hold rallies, protests or other assemblies in disregard to the principles and law laid down in the apex court’s judgement on the matter.

A single bench of Chief Justice Athar Minallah on Monday heard the Pakistan Tehreek-e-Insaf’s (PTI) petition moved through its leaders, Asad Umar and Ali Nawaz Awan, that assailed the vires of Section 144 of the Code of Criminal Procedure, 1898. The court turned down the PTI’s petition challenging the imposition of Section 144 in the federal capital.

The petitioners contended that Section 144 was a “reflection of colonial legacy” and should be declared ultra vires to the Constitution and the fundamental rights guaranteed under it.

They further prayed that the issuance of notifications under the garb of provisions of Section 144 of the Code of Criminal Procedure, 1898, imposing continuous restrictions for more than two months be declared void, illegal and unlawful against the express provisions of Article 4, 8, 10-A, 15, 16, and 17 of the Constitution.

The verdict noted that admittedly, the petitioners have not alleged any act of a public functionary that would tantamount to exercise powers under Section 144 of CrPC in violation of the fundamental rights.

It added, “Mere imposition of section 144 CrPC sans an illegal act or excessive use of powers by public functionaries does not in any manner violate the fundamental rights guaranteed under the Constitution.”

“The power conferred under section 144 of CrPC is meant to be exercised solely in public interest. An unregulated rally, protest or assembly definitely offends the guaranteed rights of the citizens who are not associated therewith. It is a constitutional obligation of the executive authorities to protect the rights of the public while considering a request by a group or political party to hold a rally or to organize protest or assembly,” maintained the judgment.

It further said that the petitioners continue to enjoy their status as members of the Parliament, and PTI has a significant membership in both Houses. The bench said that the political party; therefore, has an adequate remedy by way of tabling a bill regarding repeal of section 144 of CrPC.

Justice Minallah noted, “In case the petitioners intend to take out a rally, or to organize a protest or assembly, then they are advised to approach the competent authority for seeking permission in accordance with the principles and law enunciated by the august Supreme Court.” He added, “For the above reasons, the petition is meritless and; therefore, accordingly dismissed in limine.”

During the hearing, Babar Awan, who represented the petitioners, argued that the imposition of section 144 for an indefinite period is in violation of the fundamental rights guaranteed under Articles 8, 15, and 16 of the Constitution.

The court asked him whether the petitioners have been prevented by the public functionaries in any manner from enjoying their fundamental rights guaranteed under Articles 15 and 16 of the Constitution. He stated that though the petitioners are not aggrieved of any act of the public functionaries but the vires of section 144 of CrPC have been challenged in public interest.

Then, the bench asked that whether section 144 has been repealed by provincial legislatures’ where the PTI is in majority, and whether it has never been imposed by the executive authorities in those provinces.

Justice Minallah informed the counsel that section 144 was imposed on multiple occasions when PTI was in power and this Court was satisfied that interference was not required because it was intended to protect the rights of the citizens.

He noted in his verdict, “A plain reading of section 144 explicitly shows that the power has been conferred upon the executive authorities in order to protect the citizens from harm and to prevent unlawful disturbance. The grounds described under sub section (2) of section 144 definitely meet the threshold of “reasonable restrictions” in the context of enjoying the constitutionally guaranteed rights under Articles 15 and 16.”

He also noted that the principles and law regarding regulating political rallies, assembly or meetings intended to be scheduled by a political party have been highlighted by the august Supreme Court in the case titled “Suo Motu Case No. 07/2017” [PLD 2019 SC 318].

He said that the maintenance of law and order or preventing disturbance of public tranquillity falls within the exclusive domain of the executive authorities and their decisions regarding handling of rallies, protests or assemblies are not justiciable nor a court is equipped or competent to substitute their assessments and opinions.

The bench maintained that nonetheless, if an act of a public functionary can demonstrably be shown as an abuse of powers conferred under section 144, only then this Court would treat a petitioner as an “aggrieved person” in the context of Article 199 of the Constitution.

Copyright Business Recorder, 2022

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